Opinion
May 12, 1936.
June 26, 1936.
Judgment — Opening — Evidence — Averments in petition denied in answer.
A rule to open judgment is properly discharged where the averments of the petition are denied by the answer, and no evidence is submitted on behalf of petitioner in support of his averments or in contradiction of the denials.
Before KEPHART, C. J., SCHAFFER, MAXEY, LINN, STERN and BARNES, JJ.
Appeals, Nos. 98 and 99, Jan. T., 1936, by defendant, from orders of C. P. Warren Co., March T., 1934, Nos. 92 and 93, in case of Hallgarten Company v. Nellie Horton Schwing. Orders affirmed.
Petition and rule to open judgment.
The opinion of the Supreme Court states the facts.
Rule discharged, opinion by ARIRD, P. J. Defendant appealed.
Error assigned was order discharging rule.
C. E. Bordwell, of Bordwell Eldred, for appellant.
Wm. Glassman, for appellee.
Argued May 12, 1936.
Appellant averred that she had executed the note, on which judgment had been entered, because of threats and fear that her intimate friend, C. B. Kelley, who had been arrested for obtaining money by fraudulent means, would be sentenced and imprisoned for a long term, and that she was promised the charges would be nolle prossed if she made restitution. She did not allege threats against either her person or property and offered no testimony. The answer of the appellee denied every material averment of the petition.
As the allegations of the petition are flatly denied by the answer, and as petitioner submitted no evidence in support of her averments or in contradiction of the denials and the testimony upholding it, it is clear she failed to carry the burden justifying the opening of the judgment and granting of a jury trial: Ferguson, Exr., v. O'Hara, 286 Pa. 37; Huppert v. Huppert, 224 Pa. 374; see Mutual B. L. Assn. v. Walukiewicz, 322 Pa. 240. The court below did not err in dismissing the petition.
Orders affirmed at appellant's cost.